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Pasion v. County of Kauai

United States District Court, D. Hawaii

February 19, 2014



RICHARD L. PUGLISI, Magistrate Judge.

Before the Court is Plaintiff Ernest G. Pasion's ("Plaintiff"), Motion for Remand, filed on January 2, 2014 ("Motion"). See ECF No. 10. Plaintiff seeks an order remanding this case to the Circuit Court of the Fifth Circuit, State of Hawaii ("State Court") and awarding attorneys' fees and costs.

On January 7, 2014, the Court found this matter suitable for disposition without a hearing pursuant to Local Rule 7.2(d) of the Local Rules of Practice for the United States District Court for the District of Hawaii. See ECF No. 13. On January 16, 2014, Defendant County of Kauai (the "County") and Defendant Jay Furfaro ("Furfaro") (collectively "Defendants") filed their memoranda in opposition to Plaintiff's Motion, and on January 30, 2014, Plaintiff filed his reply. See ECF Nos. 14-16. Based on the following, and after careful consideration of the Motion, the supporting and opposing memoranda, declarations, and exhibits attached thereto, and the record established in this action, the Court FINDS AND RECOMMENDS that Plaintiff's Motion be GRANTED.


On September 16, 2009, Plaintiff was appointed to a six-year term as the Kauai County Auditor. Compl., ECF No. 1-1, at ¶¶ 13-14. As the Auditor, Plaintiff leads his office in conducting performance audits of County funds, programs, and operations. Id . ¶ 20. The audit plan for fiscal year 2010 included a certain performance audit to analyze County fuel costs, consumption, and management to identify issues and give recommendations regarding increased efficiency ("Fuel Audit"). Id . ¶ 25. The Fuel Audit revealed, among other things, that a certain high elected official ("Official A") used a County gas card assigned to a seldom-used Transportation Agency vehicle to purchase gas for Official A's private vehicle. Id . ¶¶ 26-27. This meant that Official A was using County resources and taxpayers' monies for what appeared to be a personal purpose. Id . ¶ 27.

Plaintiff was concerned that Official A's conduct could be and was a violation of law. Id . ¶ 28. Accordingly, Plaintiff reported suspected violations of law to the County, through the Kauai County Council (the "Council"), and after further investigation, to law enforcement (the Attorney General for the State of Hawaii). Id . ¶¶ 29-44. The Kauai Police Department ("KPD") subsequently opened its own investigation, and Plaintiff directed his office to turn over documents related to the Fuel Audit in response to a KPD subpoena. Id . ¶¶ 45-47.

Plaintiff understands that Defendant Furfaro, Chair of the County Council, and Official A are political allies. Id . ¶ 48. Plaintiff alleges that, due to this political alliance, and as a result of Plaintiff's reporting activities, Defendant Furfaro retaliated against Plaintiff. Id . ¶ 49. Specifically, Plaintiff alleges that Defendants began a pattern of adverse employment actions against Plaintiff, which included: harassment; refusing to afford Plaintiff special counsel where such counsel would be routine; intentionally impeding Plaintiff from being able to do his job as County Auditor; seizing, removing, and copying all computers in the Auditor's Office; making arbitrary demands; threats by Defendants to "discipline" or "terminate" Plaintiff; and actual discipline by the Council, including suspending and placing Plaintiff on probation. Id . ¶¶ 50-99.

On November 25, 2013, Plaintiff filed his Complaint in State Court, asserting the following claims: violation of the Hawaii Whistleblowers' Protection Act, Hawaii Revised Statutes ("HRS") Chapter 378 (Count I); illegal common law retaliation (Count II); negligence (Count III); violation of the Kauai County Charter (Count IV); and Declaratory Relief (Count V). Id . ¶¶ 102-129.

On December 10, 2013, the County filed its Notice of Removal ("Removal Notice"), which Defendant Furfaro joined on December 12, 2013. See ECF Nos. 1, 6. Defendants assert that the Court has federal question jurisdiction, pursuant to 28 U.S.C. § 1331. See ECF No. 1, at 7. Because Plaintiff believes that his Complaint contains only state law claims, his counsel asked the County's counsel to remand the case. See Bennett Decl. Ex. 1. The parties worked on a possible stipulation but were unable to agree to remand. See Bennett Decl. Exs. 2-3. The instant Motion followed.


The removal statute, 28 U.S.C. § 1441, provides, in pertinent part: "[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant... to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). There is a "strong presumption" against removal, and "[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc. , 980 F.2d 564, 566 (9th Cir. 1992). See also Luther v. Countrywide Home Loans Servicing, LP , 533 F.3d 1031, 1034 (9th Cir. 2008) ("[R]emoval statutes are strictly construed against removal."). "The presumption against removal means that the defendant always has the burden of establishing that removal is proper." Moore-Thomas v. Alaska Airlines, Inc. , 553 F.3d 1241, 1244 (9th Cir. 2009). "If at any time before the final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c).


A. The Well-Pleaded Complaint Rule

District courts "have federal jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. The presence or absence of federal question jurisdiction is governed by the well-pleaded complaint rule, which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint. Caterpillar v. Williams , 482 U.S. 386, 392 (1987). The rule makes the plaintiff "the master of his complaint, " and the plaintiff ...

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